On Dec. 22, U.S. District Judge Lee Rosenthal of Houston dismissed claims against Pope Benedict XVI in a suit in which three plaintiffs allege that the pope conspired to cover up a seminarian's sexual abuse of them in the mid-1990s.

Rosenthal based her decision in John Doe 1, et al. v. The Archdiocese of Galveston-Houston, et al. on Pope Benedict's head-of-state-immunity, although the suit was filed in 2004 before he was elected pope. Pope Benedict, formerly Cardinal Joseph Ratzinger, alleged in amended motions filed in May that he should be dismissed from the suit on several grounds, including immunity.

The U.S. Department of State issued a suggestion of immunity in May, requesting that the pope be dismissed from the suit. "Judicial review of this determination is not appropriate," Rosenthal wrote in the opinion.

"I think it's a shame that our State Department would get involved in an issue that basically involved covering up the sexual abuse of children in this country," says Tahira Kahn Merritt, attorney for two of the plaintiffs.

"We're going to go forward with the case against the archdiocese," says Merritt, of Kahn Merritt & Allen in Dallas.

Robert Schick, a partner in Houston's Vinson & Elkins and an attorney for the archdiocese, did not immediately return a telephone call seeking comment.

The plaintiffs alleged in their complaint that Ratzinger "designed and explicitly directed" a conspiracy to fraudulently conceal tortious conduct in connection with Colombian-born Juan Carlos Patino-Arango's alleged abuse of them while he was a seminarian working at St. Francis de Sales Church in Houston. They further allege in the complaint that after the parents of one plaintiff reported the alleged abuse to the archdiocese, Patino-Arango was moved to a "retreat house for abusive priests" and later "secretly spirited" out of this country and sent back to Colombia. [See "Holy Order?" Texas Lawyer, Sept. 5, 2005, page 1.]

A Harris County grand jury indicted Patino-Arango on a charge of indecency with a child in 2004 and he is a fugitive from justice, according to an Associated Press report.

As alleged in the complaint, Ratzinger sent a letter to all bishops in 2001, reminding them that all proceedings against clerics accused of improprieties with minors should be sent to the tribunal of the Congregation for the Doctrine of the Faith.

Jeffrey S. Lena, a Berkeley, Calif., solo who is one of the attorneys representing the pope, says Rosenthal's decision is important because the judge dismissed the case against a head of state notwithstanding the fact that the defendant was not a head of state at the time the suit was filed.
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"He still gets immunity," Lena says.

The decision also is important, Lena says, because Rosenthal identified Pope Benedict as head of a foreign state, the Holy See. According to the opinion, the plaintiffs had contended that the pope's motion and the State Department's suggestion of immunity were insufficient because neither identified the pope as head of the Vatican City State.

� Lena says Rosenthal's decision recognizes that the pope is entitled to head-of-state immunity as a religious leader.